Citation Nr: 0938355
Decision Date: 10/08/09 Archive Date: 10/22/09
DOCKET NO. 09-00 224 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. What evaluation is warranted for adult maladjustment
disorder since August 1, 1944 to October 2, 1959?
2. Entitlement to an increased rating for conversion-type
psychoneurosis with headaches and vasomotor instability,
evaluated as 30 percent from October 3, 1959 to March 8,
1994.
3. Entitlement to an effective date earlier than March 22,
1994, for the grant of a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney
ATTORNEY FOR THE BOARD
B.B. Ogilvie, Associate Counsel
INTRODUCTION
The Veteran had active duty service from June to August 1935
and from September 1942 to July 1944.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from August 1994, November 2002, and August
2008 rating decisions issued by the Department of Veterans
Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The
Board, in some manner or other, has addressed these issues in
October 1996, September 2001, September 2003, August 2005,
and May 2007.
The procedural history of this case is complex. In a
Veterans Administration Adjudication Form 526, received by VA
on August 12, 1944, the Veteran sought entitlement to service
connection for "[n]erves in throat controlling heart have
been injured and claimant is unable to have any strenuous
physical activity. Claimant's nervous system has been
affected until he is unable to concentrate for any period of
time."
In an August 1944 rating decision, VA granted entitlement to
service connection for both carotid sinus syndrome and
migraine, and assigned 30 and 20 percent ratings,
respectively. Significantly, in light of the Board's May
2007 finding that there was an unadjudicated claim of
entitlement to service connection for a psychiatric disorder
presented in August 1944, the August 1944 rating decision
also denied entitlement to that benefit sub silentio.
Andrews v. Nicholson, 421 F.3d 1278 (Fed.Cir. 2005). The
Veteran did not appeal, and that decision is final.
38 U.S.C.A. § 7104 (West 2002).
An August 1959 rating decision recharacterized the service-
connected "migraine and hypersensitive carotid sinus" as a
"psychoneurosis conversion type with headache and vasomotor
instability." The rating decision assigned a single 30
percent rating from October 3, 1959. The Veteran appealed,
and in March 1960, the Board denied the appeal. That Board
decision is final. 38 U.S.C.A. § 7104.
An August 1994 RO decision denied claims of entitlement to an
evaluation in excess of 30 percent for conversion-type
psychoneurosis, with headaches and vasomotor instability and
for a total disability evaluation based on individual
unemployability. The Veteran thereafter perfected timely
appeals. The Board, in October 1996, remanded those two
claims.
In September 2001, the Board denied entitlement to an
increased rating in excess of 30 percent for conversion-type
psychoneurosis, with headaches and vasomotor instability; and
remanded the claim of entitlement to total disability
evaluation based on individual unemployability due to service
connected disorders.
A July 2002 rating decision determined that the August 1944
rating decision, which granted entitlement to service
connection and separate evaluations for carotid sinus
syndrome and migraine headaches, but did not grant service
connection for a psychoneurosis, was not clearly and
unmistakably erroneous.
A November 2002 rating decision granted entitlement to a
total disability evaluation based on individual
unemployability due to service connected disorders, effective
March 22, 1994.
In September 2003, the Board found that the August 1944
rating decision never adjudicated the question of entitlement
to service connection for a psychoneurosis. Hence, the Board
found that a question of clear and unmistakable error was not
presented. The appellant appealed to the United States Court
of Appeals for Veterans Claims (Court).
The Board, in August 2005, remanded a claim of entitlement to
an effective date earlier than March 22, 1994, for the grant
of TDIU.
The Court, as part of a May 2006 decision, vacated and
remanded the Board's September 2003 decision relative to its
findings concerning clear and unmistakable error in the
August 1944 RO decision. The Court directed the Board to
first consider whether the appellant had presented a claim of
entitlement to service connection for a psychoneurosis in his
August 1944 submissions that to date remained unadjudicated.
In a May 2007 decision, the Board found that the Veteran's
August 1944 claim "reasonably" raised a claim for
psychoneurosis. The Board also recharacterized the increased
rating claim.
In July 2007, the RO denied entitlement to service connection
for conversion-type psychoneurosis, stemming from an August
1944 claim. The Veteran thereafter perfected an appeal.
In a July 2008 decision, the Board found clear and
unmistakable error with the sub silentio denial of a
psychiatric disorder (namely, adult maladjustment disorder)
in August 1944, and the Board remanded the claim to the RO to
provide a rating assignment for that disorder. The Board
also remanded the claims of entitlement to an increased
rating for conversion-type psychoneurosis with headaches and
vasomotor instability and entitlement to an effective date
earlier than March 22, 1994, for the grant of TDIU because
they were inextricably intertwined with the referred rating
assignment of adult maladjustment disorder.
In August 2008, the RO assigned a noncompensable rating for
adult maladjustment disorder, from August 1, 1944 to October
2, 1959. From October 3, 1959, the rating was included with
the evaluation assigned the conversion-type psychoneurosis,
with vasomotor instability, which had been assigned an
overall evaluation of 30 percent. The Veteran filed a timely
appeal as to the noncompensable rating of adult maladjustment
disorder.
As such, the matters now for appellate consideration by the
Board are those three issues listed on the title page of this
decision.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Board finds that a Remand is necessary because VA has not
met its duty to assist under the Veterans Claims Assistance
Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009).
The available post-service treatment records are silent for
treatment of an adult maladjustment disorder. The RO
provided the Veteran with a VCAA letter in October 2008,
requesting that the appellant submit any treatment records
pertinent to his claimed disorder. The Veteran did not
submit any new evidence. After this notice was sent, the RO
did not readjudicate the claim.
In his December 2008 Substantive Appeal submitted on behalf
of the appellant, the Veteran's attorney argued that VA did
not meet its duty to assist because it failed to obtain
evidence from the Veteran "concerning his symptoms from
August 1, 1944, how those symptoms affected his ability to
function and to work, and how those symptoms affected his
other service-connected disability." He also argued that VA
must be instructed to ask a competent mental health
professional to determine the Veteran's symptoms from an
adult adjustment disorder and how these symptoms affected his
other service-connected disabilities.
While the Board disagrees with the contention that VA failed
to obtain evidence from the Veteran, and the contention that
a mental health professional must determine the Veteran's
symptoms, the Board does find that VA's notices did not
comply with the VCAA. As the claims were not readjudicated
after proper notice was sent, and the Veteran's attorney has
implied that any error in the duty to assist has been
prejudicial to the Veteran. Hence, the Board finds that
further steps must be taken to ensure the duty to assist has
been met. Most importantly, the record shows that the
Veteran has not been provided with all relevant rating
schedules pertaining to the increased rating issues on
appeal.
In remanding this case, the Board notes that the duty to
assist is not a one-way street. If a veteran wishes help, he
cannot passively wait for it in those circumstances where he
may or should have information that is essential in obtaining
the putative evidence. Wood v. Derwinski, 1 Vet. App. 190,
193 (1991). Furthermore, while VA does have a duty to assist
the Veteran in the development of a claim, that duty is not
limitless. Hyson v. Brown, 5 Vet. App. 262 (1993). The
Veteran's attorney's contentions that a mental health
professional must determine the Veteran's symptoms when none
are of record and that the VA must obtain evidence of
symptoms in records that have not been identified by the
Veteran are beyond the scope of VA's duty to assist.
Finally, the Board finds that the Veteran's claims of
entitlement to increased ratings may affect the outcome of
his claims of entitlement to an effective date earlier than
March 22, 1994, for the grant of a total disability rating
based on individual unemployability. Thus, the issue is
determined to be inextricably intertwined with the remanded
increased rating claims and the earlier effective date claim
must be deferred and reconsidered on remand.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. The RO should contact the Veteran and
ask him to identify any evidence that has
not been previously associated with the
claims file, including any VA or private
treatment records documenting treatment for
adult maladjustment disorder from August 1,
1944. If the Veteran identifies private
records, the RO should provide him with a
Form 21-4142 (Authorization and Consent to
Release Information). If the Veteran
identifies any new evidence, the RO should
secure this evidence for inclusion in the
claims file. If any VA or U.S. Government
records cannot be located, the RO must
specifically document the attempts that
were made to locate them, and explain in
writing why further attempts to locate or
obtain those government records would be
futile. The RO must then: (a) notify the
claimant of the specific records that it is
unable to obtain; (b) explain the efforts
VA has made to obtain that evidence; and
(c) describe any further action it will
take with respect to the claims. The
claimant must then be given an opportunity
to respond. All attempts to secure this
evidence must be documented in the record.
2. The RO must provide the Veteran with
copies of all relevant rating schedules
covering his claim of entitlement to a
compensable rating for an adult
maladjustment disorder from August 1944
through March 1994, to include the
following:
? 1933 Schedule of Rating Disabilities
for Neuropsychiatric Disabilities
? 1945 Schedule of Rating Disabilities
for Psychiatric Conditions
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. What evaluation is warranted for adult maladjustment
disorder since August 1, 1944 to October 2, 1959?
2. Entitlement to an increased rating for conversion-type
psychoneurosis with headaches and vasomotor instability,
evaluated as 30 percent from October 3, 1959 to March 8,
1994.
3. Entitlement to an effective date earlier than March 22,
1994, for the grant of a total disability rating based on
individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Kenneth M. Carpenter, Attorney
ATTORNEY FOR THE BOARD
B.B. Ogilvie, Associate Counsel
INTRODUCTION
The Veteran had active duty service from June to August 1935
and from September 1942 to July 1944.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from August 1994, November 2002, and August
2008 rating decisions issued by the Department of Veterans
Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The
Board, in some manner or other, has addressed these issues in
October 1996, September 2001, September 2003, August 2005,
and May 2007.
The procedural history of this case is complex. In a
Veterans Administration Adjudication Form 526, received by VA
on August 12, 1944, the Veteran sought entitlement to service
connection for "[n]erves in throat controlling heart have
been injured and claimant is unable to have any strenuous
physical activity. Claimant's nervous system has been
affected until he is unable to concentrate for any period of
time."
In an August 1944 rating decision, VA granted entitlement to
service connection for both carotid sinus syndrome and
migraine, and assigned 30 and 20 percent ratings,
respectively. Significantly, in light of the Board's May
2007 finding that there was an unadjudicated claim of
entitlement to service connection for a psychiatric disorder
presented in August 1944, the August 1944 rating decision
also denied entitlement to that benefit sub silentio.
Andrews v. Nicholson, 421 F.3d 1278 (Fed.Cir. 2005). The
Veteran did not appeal, and that decision is final.
38 U.S.C.A. § 7104 (West 2002).
An August 1959 rating decision recharacterized the service-
connected "migraine and hypersensitive carotid sinus" as a
"psychoneurosis conversion type with headache and vasomotor
instability." The rating decision assigned a single 30
percent rating from October 3, 1959. The Veteran appealed,
and in March 1960, the Board denied the appeal. That Board
decision is final. 38 U.S.C.A. § 7104.
An August 1994 RO decision denied claims of entitlement to an
evaluation in excess of 30 percent for conversion-type
psychoneurosis, with headaches and vasomotor instability and
for a total disability evaluation based on individual
unemployability. The Veteran thereafter perfected timely
appeals. The Board, in October 1996, remanded those two
claims.
In September 2001, the Board denied entitlement to an
increased rating in excess of 30 percent for conversion-type
psychoneurosis, with headaches and vasomotor instability; and
remanded the claim of entitlement to total disability
evaluation based on individual unemployability due to service
connected disorders.
A July 2002 rating decision determined that the August 1944
rating decision, which granted entitlement to service
connection and separate evaluations for carotid sinus
syndrome and migraine headaches, but did not grant service
connection for a psychoneurosis, was not clearly and
unmistakably erroneous.
A November 2002 rating decision granted entitlement to a
total disability evaluation based on individual
unemployability due to service connected disorders, effective
March 22, 1994.
In September 2003, the Board found that the August 1944
rating decision never adjudicated the question of entitlement
to service connection for a psychoneurosis. Hence, the Board
found that a question of clear and unmistakable error was not
presented. The appellant appealed to the United States Court
of Appeals for Veterans Claims (Court).
The Board, in August 2005, remanded a claim of entitlement to
an effective date earlier than March 22, 1994, for the grant
of TDIU.
The Court, as part of a May 2006 decision, vacated and
remanded the Board's September 2003 decision relative to its
findings concerning clear and unmistakable error in the
August 1944 RO decision. The Court directed the Board to
first consider whether the appellant had presented a claim of
entitlement to service connection for a psychoneurosis in his
August 1944 submissions that to date remained unadjudicated.
In a May 2007 decision, the Board found that the Veteran's
August 1944 claim "reasonably" raised a claim for
psychoneurosis. The Board also recharacterized the increased
rating claim.
In July 2007, the RO denied entitlement to service connection
for conversion-type psychoneurosis, stemming from an August
1944 claim. The Veteran thereafter perfected an appeal.
In a July 2008 decision, the Board found clear and
unmistakable error with the sub silentio denial of a
psychiatric disorder (namely, adult maladjustment disorder)
in August 1944, and the Board remanded the claim to the RO to
provide a rating assignment for that disorder. The Board
also remanded the claims of entitlement to an increased
rating for conversion-type psychoneurosis with headaches and
vasomotor instability and entitlement to an effective date
earlier than March 22, 1994, for the grant of TDIU because
they were inextricably intertwined with the referred rating
assignment of adult maladjustment disorder.
In August 2008, the RO assigned a noncompensable rating for
adult maladjustment disorder, from August 1, 1944 to October
2, 1959. From October 3, 1959, the rating was included with
the evaluation assigned the conversion-type psychoneurosis,
with vasomotor instability, which had been assigned an
overall evaluation of 30 percent. The Veteran filed a timely
appeal as to the noncompensable rating of adult maladjustment
disorder.
As such, the matters now for appellate consideration by the
Board are those three issues listed on the title page of this
decision.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The Board finds that a Remand is necessary because VA has not
met its duty to assist under the Veterans Claims Assistance
Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2009).
The available post-service treatment records are silent for
treatment of an adult maladjustment disorder. The RO
provided the Veteran with a VCAA letter in October 2008,
requesting that the appellant submit any treatment records
pertinent to his claimed disorder. The Veteran did not
submit any new evidence. After this notice was sent, the RO
did not readjudicate the claim.
In his December 2008 Substantive Appeal submitted on behalf
of the appellant, the Veteran's attorney argued that VA did
not meet its duty to assist because it failed to obtain
evidence from the Veteran "concerning his symptoms from
August 1, 1944, how those symptoms affected his ability to
function and to work, and how those symptoms affected his
other service-connected disability." He also argued that VA
must be instructed to ask a competent mental health
professional to determine the Veteran's symptoms from an
adult adjustment disorder and how these symptoms affected his
other service-connected disabilities.
While the Board disagrees with the contention that VA failed
to obtain evidence from the Veteran, and the contention that
a mental health professional must determine the Veteran's
symptoms, the Board does find that VA's notices did not
comply with the VCAA. As the claims were not readjudicated
after proper notice was sent, and the Veteran's attorney has
implied that any error in the duty to assist has been
prejudicial to the Veteran. Hence, the Board finds that
further steps must be taken to ensure the duty to assist has
been met. Most importantly, the record shows that the
Veteran has not been provided with all relevant rating
schedules pertaining to the increased rating issues on
appeal.
In remanding this case, the Board notes that the duty to
assist is not a one-way street. If a veteran wishes help, he
cannot passively wait for it in those circumstances where he
may or should have information that is essential in obtaining
the putative evidence. Wood v. Derwinski, 1 Vet. App. 190,
193 (1991). Furthermore, while VA does have a duty to assist
the Veteran in the development of a claim, that duty is not
limitless. Hyson v. Brown, 5 Vet. App. 262 (1993). The
Veteran's attorney's contentions that a mental health
professional must determine the Veteran's symptoms when none
are of record and that the VA must obtain evidence of
symptoms in records that have not been identified by the
Veteran are beyond the scope of VA's duty to assist.
Finally, the Board finds that the Veteran's claims of
entitlement to increased ratings may affect the outcome of
his claims of entitlement to an effective date earlier than
March 22, 1994, for the grant of a total disability rating
based on individual unemployability. Thus, the issue is
determined to be inextricably intertwined with the remanded
increased rating claims and the earlier effective date claim
must be deferred and reconsidered on remand.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited
handling is requested.)
1. The RO should contact the Veteran and
ask him to identify any evidence that has
not been previously associated with the
claims file, including any VA or private
treatment records documenting treatment for
adult maladjustment disorder from August 1,
1944. If the Veteran identifies private
records, the RO should provide him with a
Form 21-4142 (Authorization and Consent to
Release Information). If the Veteran
identifies any new evidence, the RO should
secure this evidence for inclusion in the
claims file. If any VA or U.S. Government
records cannot be located, the RO must
specifically document the attempts that
were made to locate them, and explain in
writing why further attempts to locate or
obtain those government records would be
futile. The RO must then: (a) notify the
claimant of the specific records that it is
unable to obtain; (b) explain the efforts
VA has made to obtain that evidence; and
(c) describe any further action it will
take with respect to the claims. The
claimant must then be given an opportunity
to respond. All attempts to secure this
evidence must be documented in the record.
2. The RO must provide the Veteran with
copies of all relevant rating schedules
covering his claim of entitlement to a
compensable rating for an adult
maladjustment disorder from August 1944
through March 1994, to include the
following:
? 1933 Schedule of Rating Disabilities
for Neuropsychiatric Disabilities
? 1945 Schedule of Rating Disabilities
for Psychiatric Conditions
? 38 C.F.R. §§ 4.125-4.132, effective
Oct. 1, 1961
? 29 Fed. Reg. 6753-56 (May 22, 1964).
? 40 Fed. Reg. 42541 (Sept. 15, 1975).
? 41 Fed. Reg. 11302-03 (Mar. 18,
1976).
? 45 Fed. Reg. 26326-27 (Apr. 18,
1980).
? 53 Fed. Reg. 23-24 (Jan. 4, 1988).
All relevant information and correspondence
should be associated with the claims file,
including copies of the rating schedules as
listed above.
3. Thereafter, the RO must readjudicate
the claims of what evaluation is warranted
for adult maladjustment disorder since
August 1, 1944; entitlement to an
increased rating for conversion-type
psychoneurosis with headaches and
vasomotor instability, evaluated as 30
percent from October 3, 1959 to March 8,
1994; and entitlement to an effective date
earlier than March 22, 1994, for the grant
of a total disability rating based on
individual unemployability. When
adjudicating the increased rating claims,
the RO must specifically explain the
reasoning behind its selection of the
diagnostic code for each disability in
each rating period. If the any of the
claims is denied, a supplemental statement
of the case must be issued, and the
appellant offered an opportunity to
respond.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).